the statement must have been made in the accused’s presence, in circumstances such that the accused would be expected to respond;

the accused’s failure to respond could reasonably lead to the inference that, by his silence, the accused adopted the statement; and

the probative value of the evidence outweighs its prejudicial effect.

Mere presence of the accused at the time of the statement is not sufficient to prove an adoption of the statement.[7]

Instructions to the jury on the issue of whether the accused agreed to the statement should include informing the jury the following:[8]

whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true;

consider all of the circumstances under which the statement was made

“if in their view the accused did not assent [...] to the correctness of the statements made in his presence, these statements would have no evidentiary value [...] and should be entirely disregarded”

↑R v Stein, [1928] SCR 553 at 558 (“It is only when the accused by "word or conduct, action or demeanour" has accepted what they contain, and to the extent that he does so, that statements made by other persons in his presence have any evidentiary value …”)

Where a witness has testified that he cannot recall core details of a statements made but that she told the truth whenever speaking to them. The Court may admit the notes or document if it is satisfied that they meet the Wigmore criteria: [1]

the past recollection must have been recorded in some reliable way;

at the time, it must have been sufficiently fresh and vivid to be probably accurate;

the witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time”; and

1) that the witnesses memory is exhausted and cannot answer the question;

2) that a record was made by the witness or on behalf of the witness;

3) the record was made near the time that the information was learned;

4) the information was fresh in their mind at the time;

5) the information was recorded from what they knew at the time and was done as accurately as possible.

Counsel can then asks the record to be put in as an exhibit.

An example would be where asking a witness to recall a licence plate number that they observed and wrote down in a statement. This statement or note would have been made at a time when the information was fresh in their mind and they made an effort to be accurate.

The witness will be asked about whether they recall the licence plate number. Often they will not recall the number by heart, this will prompt a request to introduce past recollection recorded. Counsel should go through questions establishing the lack of memory; the existance of the record; the circumstances of its creation; and the accuracy of its contents.

A statement of a declarant can be adduced into evidence as a hearsay exception where it explicitly declares the state of mind of the declarant. [1] Where the declaration can infer the state of mind, it is also admissible but not as a hearsay exception, but rather as circumstantial evidence inferring the state of mind.[2]

Spontaneous or excited utterances are a class of exception to the hearsay rule. An utterance falls in this category where the evidence can characterize it as being a spontaneous exclamation made without premeditation or artifice and before the speaker had time to concoct something.[1]

It has been characterized as words that are contemporanous with some action. Statements are admitted at times as "words brigaded to action".[2]

This exception is not limited or obsolete despite the overlap with the principled approach.[2]

The availability of the co-conspirator is not determinative of whether the exception applies.[3]

↑See R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938 R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 SCR 358 at para. 8 (“Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object”

A record is admissible as hearsay where it is a business record. A business record is a record that is required to kept accurate as part of the normal course of business. The document can be admitted under the Canada Evidence Act or common law.

Strictly speaking, narrative is not a traditional hearsay exception, and is not fully hearsay at all since it is not being proffered for the truth of its contents.

It is admissible on the basis that it provides context and greater understanding to the trier of fact of the details of the investigation. It is often useful in sexual assault cases in order to determine credibility.

Under s. 715 [7], evidence from either a previous trial or preliminary inquiry may be admitted into evidence where the witness refuses to testify, is dead, is physically or mentally ill, or is out of the country.[1]

It must be proven that the evidence was taken in front of the accused. If so, it is admissible unless the accused didn't have full opportunity to cross examine.[2] There is an exception to this rule under s.715(2.1), where the accused was excused under s. 537(1)(j.1)

Witnesses under the age of 18 who give video-taped statements shortly after the alleged incident may have their statements put in for the truth of their contents under s. 715.1 where the witness is able to adopt the statement in court. Once a video statement is admitted under s.715.1, the absence of the ability to cross-examine the witness only goes to the weight of the evidence and cannot be used to argue its admissibility.[1]

Section 715.1 states:

Evidence of victim or witness under 18
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

there are a very large number of detailed business records that would be impractical to present to the court;

a competent witness has examined the documents and summarized them; and

the documents have been made available to the other side.

Where the criteria are met, the summary can be admitted without putting in the original records as evidence.[2] The exception is not applicable where the work product "involve[s] interpretations that may be the subject of legitimate debate".[3]